Conclusions and recommendations of the Committee on the Elimination of Racial Discrimination,
Guatemala, U.N. Doc. CERD/C/GTM/CO/11 (2006).

COMMITTEE ON THE ELIMINATION
OF RACIAL DISCRIMINATION
Sixty-eighth session

20 February-10 March 2006

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION

Concluding observations of the Committee on the Elimination
of Racial Discrimination

GUATEMALA

1. The Committee considered the eighth to eleventh periodic reports of Guatemala, due
respectively on 17 February 1998, 2000, 2002 and 2004 and submitted as one document
(CERD/C/469/Add.1), at its 1739th and 1740th meetings (CERD/C/SR.1739 and 1740), held
on 24 and 27 February 2006. At its 1756th and 1757th meeting, held on 9 March 2006, the
Committee adopted the following concluding observations.

A. Introduction

2. The Committee welcomes the report submitted by the State party and expresses its
satisfaction at the resumption of a constructive dialogue with Guatemala. While the
Committee appreciates that the delegation was composed of members of the Presidential
Commission on Discrimination and Racism against Indigenous Peoples in Guatemala
(CODISRA), it notes that it did not include representatives of the State party’s Ministries.

3. The Committee, noting that it received the report after a delay of seven years, invites
the State party to respect the timetable set by the Committee for the submission of its future
reports.

B. Positive aspects

4. The Committee welcomes the establishment of the Presidential Commission on
Discrimination and Racism against Indigenous Peoples in Guatemala (CODISRA), and the
Office for the Defence of Indigenous Women’s Rights within the Presidential Human Rights
Commission.

5. The Committee welcomes the promulgation of the Framework Law concerning the
Peace Agreements by which the Peace Agreements, and in particular the Agreement on
Identity and Rights of Indigenous Peoples, become binding on the State.

6. The Committee welcomes the declaration by the delegation that it is the intention of
the Supreme Court of Justice and the institutional policy of the judiciary to recognize the
indigenous legal system.

7. The Committee welcomes the promulgation of the Mayan Language Act and of
legislation with respect to the wearing of regional indigenous dress in schools.

8. The Committee welcomes the reform of chapter IV of the Municipal Code, particularly
the recognition given to traditional indigenous authorities (alcaldías indígenas) for the first
time as regular municipal authorities, in national legislation and the commitment by the State
to promote and respect indigenous people’s own forms of political and administrative
organization.

9. The Committee welcomes Government Agreement No. 22-04, which provides for
intercultural bilingual education as part of the national education system as well as measures
for its practical implementation.

10. The Committee notes with interest the follow-up to the institutionalization of B’eleje’
B’atz Day (women’s day in the Mayan calendar).

C. Subjects of concern and recommendations

11. The Committee is concerned that the statistics in the State party’s report on the
country’s indigenous peoples are incomplete and that the State party does not keep statistics
relating to the population of African descent. The Committee recalls that such information is
necessary to assess how the Convention is implemented in respect of these groups.
The Committee draws the attention of the State party to its General
Recommendation 4 and to paragraph 8 of its guidelines regarding the
submission of reports, and recommends to the State party that it
include in its next periodic report update d disaggregated statistics on
indigenous peoples and persons of African descent so that their
situation can be more accurately assessed.

12. The Committee is deeply concerned at the extent to which racism and racial
discrimination against the Maya, Xinca a nd Garifuna peoples is entrenched within the territory
of the State party and at the inadequacy of public policies to eliminate racial discrimination.
(art. 2, para. 1, and art. 2, para. 2).

The Committee urges the State party to adopt the proposed policy
entitled “Towards harmonious intercultural coexistence”, which is
intended to eliminate racial discrimination. It likewise recommends
the State party to undertake special measures as provided for in
article 2.2 of the Convention in favour of indigenous pe oples and
persons of African descent, who have historically been subjected to
discrimination. The Committee also recommends that coordination
be intensified between the various bodies involved in combating racial
discrimination, such as the Office for the Defence of Indigenous
Women’s Rights, the Presidential Commission on Discrimination and
Racism against Indigenous Peoples in Guatemala and the Ministry of
Education.

13. While the Committee recognizes that the classification of discrimination as an offence
under article 202 bis of the Criminal Code constitutes legal progress, it regrets that there is no
domestic legislation that specifically prohibits and provides sanctions for racial discrimination.
(art. 4, subpara. (a)).

The Committee recommends that the State party adopt specific
legislation classifying as a punishable act any dissemination of ideas
based on notions of superiority or racial hatred, incitement to racial
discrimination, and violent acts directed against indigenous peoples
and persons of African descent in the State party.

14. While the Committee notes the progress that has been made in preventing racial
discrimination in the administration of justice in respect of indigenous peoples, it reiterates its
concern at the problems experienced by indigenous peoples in gaining access to the justice
system, particularly because the indigenous legal system is not recognized and applied and
because of the lack of interpreters and bilingual counsel available for court proceedings. (art.
5, subpara. (a)).

The Committee reminds the State party of its General
Recommendation 31 on the prevention of racial discrimination in the
administration and functioning of the criminal justice system (para. 5
(e)), which calls on the State party to ensure respect for, and
recognition of the traditional systems of justice of indigenous peoples,
in conformity with international human rights law. The Committee
also recommends that the State party guarantee the right of
indigenous peoples to the use of interpreters and bilingual counsel in
court proceedings.

Bearing in mind its General Recommendation 25, the Committee
recommends that the State party guarantee indigenous women access
to the justice system. Furthermore, it recommends that the State
party adopt the bill classifying sexual harassment as an offence, and
that the commission of such an offence against an indigenous woman
shall constitute an aggravating circumstance.

16. The Committee notes with concern the low level of participation, especially by
indigenous women, in political life and in particular the lack of representation in Congress of
the Xinca and Garifuna peoples. The Committee is likewise concerned by the absence of any
specific reference to indigenous political participation in the Elections and Political Parties Act
(art. 5, subpara. (c)).

The Committee, bearing in mind paragraph 4 (d) of its general
recommendation 23, recommends that the State party redouble its
efforts to ensure the full participation of indigenous peoples, especially
indigenous women, in public affairs and that it take effective
measures to ensure that all indigenous peoples, particularly the Xinca
and Garifuna, participate at all levels. It also urges that the Elections
and Political Parties Act be amended with a view to promoting the
political participation of all indigenous peoples.

17. The Committee is highly concerned at indigenous peoples’ lack of access to la nd, the
lack of respect shown for their traditional lands, such as community forests, and the problems
in relation to the restitution of lands to indigenous peoples displaced as a result of armed
conflict or economic development plans (art. 5, subpara. (d) (v)).

Bearing in mind its general recommendation 23 on the rights of
indigenous peoples, in particular paragraph 5 thereof, the Committee
calls upon the State party to take steps to recognize and protect the
rights of indigenous peoples to own, develop, control and use their
communal lands and territories. In cases where they have been
deprived of their lands and territories traditionally owned, or such
lands and territories have been otherwise used without their free and
informed consent, the Committee recommends that the State party
take steps to return those lands and territories. The Committee also
urges it to ensure the effective implementation of the national land
register law so that indigenous community lands can be identified and
demarcated.

18. The Committee is concerned by reports of obstructions to the use of traditional sacred
sites by indigenous peoples and conflicts arising from these tensions being handled by judicial
officers as criminal matters. It has also be en reported that a Commission examining a
constitutional provision on sacred sites has been discontinued. (art. 5, subpara.(d)(vi))

The Committee requests the State party to examine the possibility of
an alternative to criminal proceedings in handling these conflicts and
urges it to ensure unobstructed enjoyment of this cultural right of the
indigenous peoples.

19. The Committee notes with concern that mining licences have been granted by the
Ministry of Energy and Mines to concession enterprises and regrets that indigenous peoples
were not consulted or informed that the permission to exploit the subsoil of their territory had
been awarded to such enterprises. The Committee likewise expresses its concern at the draft
legislation on consultative procedures which, if adopted, would infringe indigenous peoples’
right to participate in decisions affecting them. (art. 5, subpara. (d) (v)).

The Committee recommends that when taking decisions having a
direct bearing on the rights and interests of indigenous peoples the
State party endeavour to obtain their informed consent, as
stipulated in paragraph 4 (d) of its general recommendation 23.
The Committee also recommends that before adopting the draft
legislation on consultative procedures, the State party include a
clause referring to the right of indigenous peoples to be consulted
whenever legislative or administrative measures are contemplated
that may affect them with a view to securing their consent to such
measures.

20. The Committee is concerned by the high illit eracy rate that exists within the
indigenous population, especially in rural areas, where 65 per cent of indigenous women are
illiterate. The Committee is also concerned at the low primary school attendance among the
indigenous population, especially indigenous young women and girls. (art. 5, subpara. (e) (v)).

The Committee urges the State party to take steps in the short and
medium terms to implement measures to reduce illiteracy, especially
in rural areas and among women and girls. The Committee
recommends that the State party consider increasing the number of
bilingual schools, particularly in rural areas. In this connection the
Committee recommends that the State party pursue educational
reform through culturally relevant curricula, bearing in mind the
provisions of the Agreement on Identity and Rights of Indigenous
Peoples.

21. While the Committee welcomes the information provided on the structure,
composition and competence of the Ombudsman for Indigenous Peoples of the Office of the
Human Rights Procurator (Defensoría de los Pueblos Indígenas de la Procuraduría de los
Derechos Humanos), it regrets that no information has been provided on the results of the
cases filed before this body.(art. 6).

The Committee recommends that the State party provide information
on the results from the 28 complaints of racial discrimination that
have been submitted including whether the victims have received due
compensation.

22. While the Committee welcomes the information provided by the delegation on
statistics relating to cases brought before the Office of the Human Rights Prosecutor (Fiscalía
de Derechos Humanos), which investigates offences involving discrimination and racism, it
nevertheless notes that of the 79 cases brought, only 1 resulted in conviction and sentence.
(art. 6).

The Committee requests the State party to include in its next periodic
report explanations as to why a sentence was handed down in only 1
out of 79 cases. The Committee would also appreciate statistical
information on the complaints broug ht before the Office of the
Human Rights Prosecutor, the proceedings initiated and the outcomes
of cases involving racial or ethnic discrimination as well as specific
examples of such cases. The Committee would also like to know
whether the victims received just and adequate reparation for any
material and moral damage suffered as a result of racial
discrimination.

23. The Committee is greatly concerned by attitudes of contempt and rejection displayed
by the communication media towards indigenous peoples. The Committee also wishes to
express its concern at the fact that community radio stations have a broadcasting range of less
than 1 kilometre, thus restricting the enjoyment of this medium by indigenous communities.
(art.7)

The Committee recommends that the State party take appropriate
measures to combat racial prejudice that can lead to racial
discrimination in the media. It also recommends that a multicultural
approach be adopted in the local, community and free communication
media, in terms of their co ntent and supervisory structures, and
ensure in particular the proper functioning of community radio
stations so that they reach the largest possible number of indigenous
communities.

24. The Committee recommends that the State party accelerate adoption of the bill
authorizing the Government to recognize the competence of the Committee by means of the
declaration provided for in article 14 of the Convention.

25. The Committee recommends that the State party take account of the
relevant parts of the Durban Declaration and Programme of Action when
incorporating the Convention, particularly articles 2 to 7, into its domestic law. It
also recommends that, in its next periodic report, the State party provide
information on measures it has taken to give effect to the Durban Declaration and
Programme of Action at the national level, particularly the preparation and
implementation of the national plan of action.

26. The Committee recommends that the reports of the State party be made public as soon
as they are submitted, and that the observations of the Committee in this regard likewise be
published and disseminated.

27. In accordance with article 9, paragraph 1, of the Convention, and rule 65 of the
Committee’s rules of procedure, as amended, the Committee requests the State party to inform
it of the implementation of the Committee’s recommendations contained in paragraphs 13, 15
and 19 within one year of the adoption of the present conclusions.

28. The Committee recommends that the State party submit its twelfth and thirteenth
periodic reports in a single report, due on 17 February 2008.